"Flag Desecration" Laws Are Still Unconstitutional, Even in Texas

In 1989, the U.S. Supreme Court ruled that burning the American flag was a protected form of free speech and invalidated so-called flag desecration laws across the country. It’s the kind of landmark free speech ruling professors make first-year journalism and law school students memorize.

Yet Texas not only still has a flag-desecration statute on the books but until yesterday, people could still be arrested for, as one judge supportive of the law put it, "destroying a symbol of our nation and state."

Twenty-three years after the high court told Texas that destroying or desecrating the American flag is covered under the First Amendment’s free speech protections, authorities in Lovelady, about 100 miles north of Houston, arrested, charged and jailed 20-year-old Terence Johnson for throwing an American flag on the ground.

On Wednesday, the state’s highest criminal court ruled that laws that ban burning, stomping on, throwing to the ground or in any other way destroying or desecrating the American flag have, in fact, been unconstitutional for a very long time. Writing the majority opinion, Texas Court of Criminal Appeals Presiding Judge Sharon Keller wrote, “We hold that the statute is invalid on its face because it is unconstitutionally overbroad in violation of the First Amendment.”

Johnson was charged under a flag desecration statute that state lawmakers swiftly passed just months after the 1989 Supreme Court ruling that invalidated the state’s first such law. After his arrest in 2012, Johnson told police he grabbed the flag from a sidewalk display and threw it to the ground because he was angry a store clerk made racist comments to his mother (Johnson is black). He spent more than one month in jail before he was released on bond and faced up to one year in jail and a $4,000 fine.

While Wednesday’s ruling upheld two lower court decisions dismissing the case against Johnson, two CCA judges issued dissenting opinions arguing that the law not only isn't unconstitutional but should have applied in Johnson’s case.

“It serves to keep people from destroying a symbol of our nation and state,” wrote Judge Larry Meyers, “which is exactly what (Johnson) did here.”